DUI Law - Underage Consumption Can't Be Based On Cop Sniff

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This case comes from NCDD Member Steven Hernandez, and it is a great one! In State of New Jersey v. Koch, Not Reported in A.3d, 2011 WL 4434949 (N.J.Super.A.D.), the defendant was convicted in the Municipal Court of Mansfield of underage consumption of alcohol. Koch, an eighteen-year-old high school student, went to a party with his nineteen-year-old girlfriend Ashley. A neighbor complained to the police that young people attending the party were smoking marijuana and urinating on his lawn. Patrolman Joseph DeWitt testified that he responded to the location of the party. He saw that there were thirty to fifty cars parked near the home. It is undisputed that alcoholic beverages were being consumed in and around the home and on its deck. Upon the arrival of DeWitt in a marked squad car, around twenty young people ran into the woods behind the home. DeWitt did not pursue them. He did detain the forty to fifty young people who had not run into the woods. He lined them up; told them they were not free to leave; and proceeded to sniff the breath of each to determine if they had consumed alcohol. It is undisputed that no MirandaFN2 warnings were given. Specifically, no one was advised that they had the right to refuse to submit to being sniffed, or to remain silent.



According to DeWitt, just before he sniffed Koch, the young man said spontaneously, “I only had one.” He remembered that Koch's breath smelled of alcohol. After about twenty minutes, DeWitt told the group that they were free to leave, but must do so with a “sober” driver. No summonses were issued at that time.



Ninety minutes after DeWitt left the scene of the party, he came across Koch again. According to DeWitt, he saw a maroon Pontiac, later determined to be registered to Ashley Perch, stationary on the side of the road. He testified that Koch, Ashley and a young woman were the occupants of the vehicle, but, “the operator of the [Pontiac] when I first arrived was not Zeb Koch.” DeWitt distinctly remembered speaking with Koch about Koch and Ashley exchanging places, because “Ashley Perch was only 17 years old and was not allowed to drive after midnight.”



Ashley testified that Koch was with her the whole time at the party. He did not drink any alcoholic beverages, nor make any comment to DeWitt about drinking. She would not have let Koch drive her car if he had consumed an alcoholic beverage. According to her, after leaving the party with Koch, DeWitt pulled over her Pontiac. Koch was driving. The Pontiac was moving when DeWitt activated his overhead lights to pull it over. She confirmed that that she was nineteen years old, not seventeen as DeWitt had testified.



Koch testified and denied drinking any alcoholic beverages at the party. He was over eighteen on the day of the party. Ashley was not subject to a midnight curfew for new drivers.



After speaking briefly, DeWitt told Koch to continue driving the Pontiac. The motor vehicle stop ended and no charges were issued against anyone.



The defense attempted to introduce into evidence as Exhibit D–5, a videotape made by a camera in DeWitt's police vehicle. The exhibit was excluded from evidence, but it was a part of the record on appeal. One of the issues raised dealt with the admissibility of the video. The appeals court viewed the video. The video showed that the Pontiac was operated by Koch. It was moving for a considerable distance before DeWitt activated his overhead lights and pulled it over.



Four days later, on May 12, 2009, DeWitt issued a summons for underage drinking to Koch. Several days later, Koch learned about the charge for the first time, when his high school principal told him that he was being suspended from school activities because of an underage drinking charge. The defendant was convicted of the charge in the municipal court, and the conviction was affirmed in the trial court.



On appeal, the court held that the video was erroneously excluded:



"After a careful review of the record, we conclude that the Law Division judge erred in excluding Exhibit D–5, the videotape of a motor vehicle stop of Koch about an hour and a half after DeWitt left the scene of the party. That videotape directly impeached DeWitt's testimony. It tended to raise a reasonable doubt about the credibility and accuracy of DeWitt's identification of Koch as one of the partygoers who consumed alcohol. The videotape tended to impeach DeWitt's testimony that the Pontiac was stationery when he first saw it and someone other than Koch was the driver."



The appellate court also found that the defendant was in custody, and that the 'sniff' of his breath should have been preceded by Miranda warnings:



"The partygoers who remained at the scene were detained for about twenty minutes. They were not free to leave. DeWitt's sniffing of their breath was clearly in a custodial setting. His actions were an implied question to Koch and others to indicate whether they had consumed alcoholic beverages. For Miranda purposes, when determining whether a suspect has been subjected to custodial interrogation courts look “not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U.S. 291, 300–01, 100 S.Ct. 1682, 1689–90, 64 L. Ed.2d 297, 307–08 (1980). In keeping with Miranda's protective aims, consideration is paid to the suspect's perception of events, not the intent of police. Innis, supra, 446 U.S. at 301, 100 S.Ct. at 1690, 64 L. Ed.2d at 308."



Finally, the court found that the smell of defendant's breath was insufficient to prove the charge of unlawful consumption as a matter of law:

"Moreover, the testimony of DeWitt that he sniffed alcohol on Koch's breath, even if believed, is insufficient as a matter of law to sustain a conviction. There were many young people at this party. Alcohol was being consumed by many of them. Therefore, the smell of alcohol in the area of the party was a given. The sniff test without excluding other sources, was not sufficient to establish that Koch was drinking. This is so, in light of the serious impeachment of DeWitt's credibility by D–5, which was erroneously excluded. The conviction cannot stand."



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